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Friday, December 21, 2012

Development of delegated legislation in India

The
Privy Council was the highest Court for appeal from India in constitutional
matters till 1949. The question of constitutionality came before the Privy
Council in the famous case of R.Vs. Birah (1878) 3 AC 889. An Act
was passed in 1869 by the Indian Legislature to remove Groro Hills from the
civil and criminal jurisdiction of Bengal and vested the powers of civil and
criminal administration in an officer appointed by the Legislative Governor of
Bengal. The Legislative Governor was further authorized by section 9 of the Act
to extend any provision of this Act with incidental changes to Khasi and Jaintia
Hills. By a notification the Legislative-Governor extended all the provisions
of the Act to the districts of Khasi and Jaintia Hills. One Burah was tried for
murder by the commissioner of Khasi and Jaintia Hills and was sentenced to
death. The Calcutta High Court declared section 9 as unconstitutional
delegation of legislative power by the Indian legislature. The ground was that
the Indian Legislature is a delegate of British Parliament, therefore, a
delegate cannot further delegate. The Privy Council on appeal reversed the decision
of the Calcutta High Court and upheld the constitutionality of section 9 on the
ground that it is merely a conditional legislation. The decision of the Privy
Council was interpreted in two different ways.

(i)
Indian legislature was not delegate of British Parliament; there is no limit on
the delegation of legislative functions.

(ii)
Since Privy Council has validated only conditional legislation. Therefore,
delegation of legislative power is not permissible.

So,
it did not become clear whether full-fledged delegated legislation was allowed
or only conditional legislation was allowed.

Federal Court

The
question of constitutionality of delegation of legislative powers came before
the Federal Court in Jhatindra Nath Gupta Vs. Province of Bihar, AIR 1949 FC
175. On this case section 1(3) of Bihar Maintenance of public order Act, 1948
was challenged on the ground that it authorized the provincial government to
extend the life of the Act for one year with modification as it may deem fit.
The Federal Court held that

the power of extension with modification is
unconstitutional delegation of legislative power because it is an essential
legislative Act. In this manner for the first time it was held that in India
legislative powers cannot be delegated. However, Fazal Ali J. in his dissenting
opinion held that the delegation of the power of extension of the Act is
unconstitutional because according to him it merely amounted to a continuation
of the Act. Later on, it is submitted that the minor view was correct and the
Supreme Court upheld similar provision in another cases.

Supreme Court

The
decision in Jatinfra Nath Case created doubts about the limits of
delegation of legislative powers. Therefore, in order to clarify the position
of law for the future guidance of the legislature in matters of delegation of
legislative function, the President of India sought the opinion of the Court
under Article 143 of the Constitution on the constitutionality of three Acts
which conferred extension of area and modification power to the executive.

The
Delhi Laws Act case, AIR 1951 SC 332, among them, said
to be the Bible of delegated legislation. Seven judges heard the case and
produced separate judgments. The case was argued from two extreme points.

Argument-1:
Power of legislation carries with it the power to delegate. If the legislative
don’t abdicate itself, there can be no limitation on delegation of legislative
powers.

Argument-2:
As there is in the Constitution the separation of powers and delegatus non
potest delegare, so there is an implied prohibition against delegation of
legislative powers.

The
Supreme Court took the moderate view and held-

(i)
Doctrine of separation of powers is not a part of the constitution.

(ii)
Indian Parliament is never considered an agent of anybody and therefore
doctrine of delegatus non potest delegare has no application.

(v)
The limitation upon delegation of power is that the legislature cannot part
with its essential legislative power that has been expressly vested in it by
the constitution. Essential legislative power means laying down the policy of
the law and enacting that policy into a rule of conduct.

So,
the delegation was held to be valid except with repealing and modification of
legislative power.